Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^** 

John Witherow, a Nevada state prisoner, appeals pro se and in forma pauperis the district court's dismissal of his 42 U.S.C. § 1983 action for equitable relief against Ernest A. Maggini, Clerk of Monterey County, California. By this action, Witherow attacks the constitutionality of a California conviction adjudicated prior to the Nevada conviction for which Witherow is now incarcerated. Although he has apparently served his sentence for the California conviction, Witherow seeks to seal or expunge the record of the prior conviction because of its "collateral consequences." In particular, Witherow alleges that the California conviction has been used by Nevada authorities to enhance the sentence he is now serving in Nevada. Witherow also complains generally of Maggini's dissemination of information concerning the prior conviction.

Pursuant to Fed. R. Civ. P. 12(b) (6), the district court dismissed the action with prejudice on the ground that Witherow had an adequate legal remedy, thereby precluding federal injunctive relief. See Pulliam v. Allen, 466 U.S. 522, 537, 542 & n. 22 (1984). As an alternate ground for dismissal, the court found that Witherow's action was frivolous.¹  Reviewing the dismissal de novo, we affirm for reasons varying from those of the district court. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).² 

If a state prisoner's section 1983 claim for injunctive relief would result in the prisoner's release, or in the reduction of the prisoner's sentence, the claim must be presented as a 28 U.S.C. § 2254 petition for writ of habeas corpus; section 1983 cannot be used to circumvent the requirement that state remedies be exhausted. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). It is apparent that if Witherow were to obtain the relief sought, it could well result in the reduction of his Nevada sentence. Therefore, if Witherow is to proceed in federal court, he must present his claims in a section 2254 petition, after exhausting the claims in the Nevada state courts. Id.³  That Witherow has completed the sentence imposed for the California conviction is no obstacle to filing such a petition, because the real target of the habeas attack is Witherow's current incarceration under the Nevada sentence, as enhanced by the California conviction. See Feldman v. Perrill, Nos. 88-15237, 88-6432, slip op. 4687, 4694-95 (9th Cir. May 11, 1990).

Ordinarily, the district court should have treated Witherow's action as a section 2254 petition, rather than dismissing the case. See Franklin v. Oregon, 662 F.2d 1337, 1347 & n. 13 (9th Cir. 1981); see also Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (before dismissing the action of a pro se litigant, it must be absolutely clear that the deficiencies of the complaint cannot be cured by amendment). However, a federal district court in California cannot entertain a section 2254 petition concerning a state prisoner's custody in Nevada; such petitions must be filed in the federal judicial district of Nevada. Hassain v. Johnson, 790 F.2d 1420 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). Therefore, because it is apparent that Witherow cannot not cure the deficiencies of his complaint, cf. Noll, 809 F.2d at 1448, the dismissal is

AFFIRMED.